The State of Florida executed a man whose jury did not unanimously agree to kill him, and the Roberts Court has built the machinery that let it happen.
Andrew Richard Lukehart, 53, died by lethal injection at Florida State Prison in Raiford on Tuesday evening. He had been on death row for nearly thirty years, convicted of the 1996 murder of his girlfriend’s five-month-old daughter, Gabrielle Hanshaw. The facts of the murder are not in meaningful dispute: Lukehart struck the infant in the head at least five times, fracturing her skull, dumped her body in a body of water, and falsely reported an abduction. He had previously served time for beating a different girlfriend’s eight-month-old child, leaving that infant with a fractured skull, broken arm, leg, and ribs. The crime was brutal. The state’s interest in punishment is undisputed. But the constitutional constraints on the state’s power to execute are separate from the substantive justice of the conviction, and the Court has dismantled them.
The first thing the Court dismantled is the Eighth Amendment’s prohibition on cruel and unusual punishment. Lukehart’s legal team argued that his advanced kidney disease would make Florida’s lethal-injection protocol a medical hazard—the anesthetic and paralytic, interacting with compromised renal function, would likely induce pulmonary edema and conscious suffocation. The state did not have to prove he would sleep through his own death. Under the doctrine the Court engineered in Glossip v. Gross, 576 U.S. 863 (2015), and hardened in Bucklew v. Precythe, 587 U.S. 119 (2019), a prisoner challenging a method of execution must identify a “known and available” alternative method. The standard is a catch-22 designed to defeat the claim at the threshold. States keep backup protocols confidential; prisons do not maintain them physically; the prisoner cannot prove an alternative is “readily available” because the state refuses to implement it in advance. The burden shifts from the state—which controls the drug supply, the medical staffing, and the protocol design—to the condemned man, who lacks the medical records to test the interaction and the administrative authority to implement a fix. The Court has legalized a regime in which the state does not have to prove the prisoner will not suffer; the prisoner must prove the state can kill him more comfortably. Andrew Richard Lukehart died not because the state proved he would not suffer, but because the law no longer requires the state to prove it. The Court has locked the Eighth Amendment’s constraint on execution methods, and the key is buried in a file drawer the condemned can never open.
The second thing the Court dismantled is the Sixth Amendment’s requirement that a jury, not a judge, find the facts that authorize the ultimate punishment. The jury that convicted Lukehart voted 9–3 to sentence him to death. Three jurors—a quarter of the panel—voted to spare his life. Florida law at the time permitted non‑unanimous death sentences. In 2016, the Court held in Hurst v. Florida, 577 U.S. 92, that Florida’s capital‑sentencing scheme violated the Sixth Amendment because it allowed a judge, rather than a jury, to find the facts necessary to impose death. The Court did not reach the question of whether a non‑unanimous jury recommendation for death is itself unconstitutional. Florida subsequently revised its statute to require unanimity, but in 2023, the legislature, with Governor Ron DeSantis’s signature, allowed already‑imposed non‑unanimous sentences to stand. Lukehart’s 9‑3 sentence was one of those.
The Court has, across multiple terms, declined to grant certiorari on the question. In Ramos v. Louisiana, 590 U.S. 83 (2020), it held that the Sixth Amendment requires a unanimous jury verdict for a criminal conviction, overruling Apodaca v. Oregon. Justice Gorsuch’s majority opinion went to considerable length to distinguish the conviction‑phase unanimity question from the sentencing‑phase question, insisting the latter was not presented. But the structural logic of Ramos—the founding‑era common‑law understanding of the jury’s role, the requirement that a jury find the facts authorizing punishment, the rejection of functionalist balancing—extends to death‑sentencing findings without any analytical gap the Court has articulated. The death sentence is the only criminal penalty whose imposition requires a separate sentencing‑phase finding; in every other context, the jury’s conviction is the sentence’s predicate. In the capital context, death is not available unless the jury finds the aggravating factors outweigh the mitigating ones. A non‑unanimous finding that death is appropriate is a non‑unanimous finding of the factual predicate for the state’s most final act. The Court knows this. The Court has declined to say so.
The procedural posture is the dodge. The working‑bar position holds that the execution is lawful because the Court has not yet ruled otherwise. The record shows a different reality: the Court had Ramos in front of it, and it chose to leave the capital‑sentencing question for another day. That day has not come for Andrew Richard Lukehart, for the eight people Florida has put to death this year—a sustained execution tempo that included Richard Knight in May—or for those who will be executed next under non‑unanimous sentences in Florida and Alabama, the two states that still permit them.
The state of Florida will defend its action on straightforward grounds: the law at the time of the murder permitted a 9‑3 recommendation; the legislature chose to preserve non‑unanimous sentences already imposed; the Court has not held otherwise; the execution followed all applicable procedures. That is what the state will say.
The state is killing a man whose jury could not agree to kill him. That is what the state is doing. And the Court that legalized the machinery of his death—the catch‑22 that insulated the injection protocol, the procedural dodge that insulated the non‑unanimous sentence—has washed its hands of both.